Madhya Pradesh High Court
Ramesh Chand Sharma Alias Naresh Sharma vs The State Of Madhya Pradesh on 24 June, 2022
Author: Rajeev Kumar Shrivastava
Bench: Rajeev Kumar Shrivastava
1
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
*****************
BEFORE SINGLE BECNCH:- HON'BLE SHRI
JUSTICE RAJEEV KUMAR SHRIVASTAVA
CRIMIAL REVISON NO. 2105 of 2022
Between
RAMESH CHAND SHARMA ALIAS
NARESH SHARMA, SON OF LATE
SHRI RAMGOPAL SHARMA,
AGED 82 YEARS, OCCUPATION
AGRICULTURIST & OTHERS
..... PETITIONERS
(SHRI RK SHARMA, SENIOR COUNSEL WITH
SHRI VK AGRAWAL, SHRI BS GOUR AND MS.
BHAVYA SHARMA, COUNSEL FOR THE
PETITIONERS)
AND
STATE OF MADHYA PRADESH, THROUGH
POLICE STATION LAHAR, DISTRICT
BHIND (MP)
&
ANOTHER
....RESPONDENTS
(DR. (SMT.) ANGALI GYANANI, PUBLIC
PROSECUTOR FOR THE RESPONDENT
NO.1/STATE)
Reserved on : 21-06-2022
Passed or Delivered on :24- June, 2022
2
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This revision coming on for final hearing, Hon'ble Shri
Justice Rajeev Kumar Shrivastava, passed the following:
ORDER
The present criminal revision has been preferred under Section 397 read with Section 401 of CrPC against the the order dated 07-06-2022 passed by Special Judge, Bhind (MP) in Sessions Trial No.32 of 2014 by which cognizance has been taken against the petitioners under Sections 325, 323 read with Section 34 of IPC and Section 3(1)(x) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act ( in short ''SC and ST Act'') while rejecting the application filed under Section 319 of CrPC.
(2) As per the prosecution case, complainant Nirpat Singh lodged a report at Police Station Lahar alleging therein that on the date of incident i.c. 07/12/2013 at around 11:00 am, at Village Sikri Jagir while his father Raghunath was distributing seeds of wheat, at that time, the petitioners along with 10-12 unknown persons came there and started beating to his father Raghunath and inflicted injuries to his father Raghunath by means of katta on his left hand and all the accused persons 3 started beating by means of lathi and stick. It is further alleged that all the petitioners were also inflicted injuries to the mother of complainant. On the basis of said report lodged by respondent No.2 complainant, an FIR vide Crime No.285/2013 has been registered against accused persons for commission of offence under Sections 323, 307, 147, 148, 149 IPC and Section 3(2)(v). of SC & ST Act. After completion of investigation and other formalities, police filed charge sheet and the trial Court has taken cognizance under Section 319 of CrPC against petitioners. Hence, this revision. (3) It is submitted by learned senior counsel appearing for the petitioners that the police had investigated the matter and found that petitioners were not present on the spot at the time of incident and had not caused any any injury to anybody as they were present at some other place at the time of incident. During investigation, after recording the statements of independent witnesses, police found that the alleged offence was committed by three accused persons, namely, Lucky, Monu and Ashok and after completion of investigation, police filed a charge sheet against petitioners under Sections 323, 4 324, 325 of IPC and Section 3(1)(x) of SC and ST Act. During investigation, the statements of independent witnesses, namely, Govind, Krishna, Angad, Kamal, Ram Karan and Buddhilal were recorded, who in their evidence, have categorically stated that the petitioners were not present on the spot at the time of incident and they have not committed any offence and have not caused any injury to anybody. The police have also recorded the statements of Dr. Shailendra, Medical Officer of Khalwa Hospital Khandwa; Shiv Kumar, Chief Loco-Inspector of Railway Junction Khandwa; Dayashankar of Khalwa; Devendra Singh, Senior Manager; Sadguru Eye Hospital, Jankiund, Chirakoot, Satna and also collected records of out-door patients and seized the records of CCTV Footage, which are the part and parcel of charge sheet and found that the petitioners were either present in Khandwa or Chitrakoot, Satna and they accepted plea of alibi as they were exonerated by the police. At the time of trial, the evidence of independent witnesses, namely, Lucky, Monu and Ashok as well as evidences of Raghunath (PW1), complainant Nirpat Singh (PW2), Smt. Sundara (PW3) & Anil (PW4) were 5 recorded vide Annexures P2 to P5 and on the basis of their evidence, the learned trial Court has taken cognizance under Section 319 of CrPC against the petitioners for commission of offences under Section 323, 325 r/w Section 34 of IPC and Section 3 (1)(x) of SC & SC Act, which is contrary to law. It is further submitted that the trial Court has committed an error in taking cognizance against petitioners without affording any opportunity of hearing which is against the principle of natural justice. It is further submitted that at the time of investigation, the independent witnesses, namely, Govind, Krishna, Angad, Kamal, Ramkaran and Buddhilal have specifically stated in their evidence that the petitioners were not present on the spot at the time of incident and the police had also recorded the statements of Senior Manager of Sadguru of Eye Hospital of Chitrakoot, Satna; Dr. Shailendra Katariya, Block Medical Officer; Shiv Kumar Sharma, Chief Loco-Inspector of Railway Junction Khandwa and the evidence of Dayashankar of Tahsil Khalwa, Khandwa and found that they were not present on the spot at the time of incident. The trial Court has not overlooked the above aspect which is the part and parcel 6 of Case Diary and passed the impugned order in taking cognizance against the petitioners under Section 319 of CrPC. It is further submitted that powers exercised under Section 319 of CrPC should be invoked sparingly and the learned Magistrate without applying its judicial mind has passed the impugned order so that free, fair and impartial investigation in the matter which has been hampered or frustrated. It is further contended that petitioners have been implicated due to dispute in the political rival party and with an ulterior and mala fide intention, the petitioners have been falsely implicated. Prima facie no case is made out against petitioners for commission of offence. Hence, it prayed that the impugned order passed Magistrate in order to take cognizance deserves to be set aside and revision deserves to be allowed.
(4) Per contra, the Counsel for the opposed the contentions of the petitioners and submitted that the order in taking cognizance under Section 319 CrPC is well-established jurisdiction of the Trial Court. At the time of recording of evidence or else, if it is found that there is ample evidence, then the Trial Court can take cognizance against the accused 7 like petitioners concerned. The trial Court has not committed any error in passing the impugned order. Hence, prayed for dismissal of this revision.
(5) Heard the learned counsel for the parties at length ad perused the documents available on record.
(6) The Hon'ble Apex Singh in the matter of Brijendra Sinbgh and Others vs. State of Rajasthan, reported AIR 2017 SC 2839 has held as under :-
''14. When we translate the aforesaid principles with their application to the facts of this case, we gather an impression that the trial court acted in a casual and cavalier manner in passing the summoning order against the appellants. The appellants were named in the FIR. Investigation was carried out by the police. On the basis of material collected during investigation, which has been referred to by us above, the IO found that these appellants were in Jaipur city when the incident took place in Kanaur, at a distance of 175 kms. The complainant and others who supported the version in the FIR regarding alleged presence of the appellants at the place of incident had also made statements under Section 161 Cr.P.C. to the same effect. Notwithstanding the same, the police investigation revealed that the statements of these persons regarding the presence of the appellants at the place of occurrence was doubtful and did not inspire confidence, in view of the documentary and other evidence collected during the investigation, which depicted another story and clinchingly showed that appellants plea of alibi was correct.
15. This record was before the trial court.8
Notwithstanding the same, the trial court went by the deposition of complainant and some other persons in their examination-in-chief, with no other material to support their so- called verbal/ocular version. Thus, the 'evidence' recorded during trial was nothing more than the statements which was already there under Section 161 Cr.P.C. recorded at the time of investigation of the case. No doubt, the trial court would be competent to exercise its power even on the basis of such statements recorded before it in examination-in-chief. However, in a case like the present where plethora of evidence was collected by the IO during investigation which suggested otherwise, the trial court was at least duty bound to look into the same while forming prima facie opinion and to see as to whether 'much stronger evidence than mere possibility of their (i.e. appellants) complicity has come on record. There is no satisfaction of this nature. Even if we presume that the trial court was not apprised of the same at the time when it passed the order (as the appellants were not on the scene at that time), what is more troubling is that even when this material on record was specifically brought to the notice of the High Court in the Revision Petition filed by the appellants, the High Court too blissfully ignored the said material. Except reproducing the discussion contained in the order of the trial court and expressing agreement therewith, nothing more has been done. Such orders cannot stand judicial scrutiny.'' (7) In the light of law laid down in the above-said judgment, it is evident that during investigation, Investigating Officer is having jurisdiction to investigate the matter and for that purpose, relevant enquiry is required to be done by 9 Investigating Officer. Before filing of charge sheet, it is the duty of Investigating Officer to prove its case with the help of evidence adduced before it during course of investigation and Investigating Officer has also jurisdiction to look into the allegations made in the FIR or complaint and if it is found that some facts and contents mentioned in the FIR are not in existence or appear to be false, then Investigating Officer could very-well distinguish them and accordingly, he may file charge sheet only against the persons whom allegations are found to be proved in investigation. In the present case, Investigating Officer has considered the relevant documents which show that at the time of incident, petitioners were not present on the spot at the time of incident rather, their presence at some other place has been found to be established. Therefore, in the light of aforesaid judgment of Brijendra Singh (supra), the Investigating Officer is not empowered to file charge against whom the allegations are not found proved. Under Section 319 of CrPC. the condition precedent is that if it appears from the evidence that any person not being accused, has committed any offence for which such person 10 could be tried together with accused, the Court may proceed against such person for offence which he appears to have committed and the Court may take cognizance against him and there must be sufficient evidence in the case to take cognizance against such person. Unless there is sufficient evidence, power under Section 319 of CrPC could not be exercised and there must be prima facie case against such person. In the case of Bhola Rai vs. State of Bihar (1997) 3 Crimes 48 (Pat), it has been observed that in order to apply Section 319 of CrPC, it is essential that the need to proceed against the person other than the accused, appearing to be guilty of offence, arises only on evidence recorded in the courses of any enquiry or trial.
(8) In the present case, all the independent witnesses have not supported the version as well as the contents of FIR and a political rivalry is in existence between the parties. Therefore, considering the facts and circumstances of case, it is apparent that prima facie, no case is made out against petitioners for commission of aforesaid alleged offences. Rather, it reflects that the interested witnesses are trying to implicate the 11 petitioners with some ulterior motive. Therefore, learned Special Judge, Bhind has passed the impugned order dated 07- 06-2022 which appears to be perverse as well as foreign to law and the same deserves to be set aside.
(9) In the light of law laid down by the Hon'ble Apex Court in the aforesaid case-law as well as looking to the material and documents available on record, this revision deserves to be and is hereby allowed.
A copy of this order be sent to concerned Court below for necessary information and compliance.
(Rajeev Kumar Shrivastava) Judge MKB Digitally signed by PAWAN KUMAR Date: 2022.06.25 12:09:11 +05'30'